Oscar Perkins v. State
12-15-00001-CR
| Tex. App. | Jul 22, 2015Background
- Oscar Perkins was indicted for third-degree felony assault of his estranged wife, Patsy Perkins, alleging he impeded her breathing/circulation by applying pressure to her neck (Tex. Penal Code §22.01(b)(2)); punishment was enhanced to habitual-offender range.
- The jury found Perkins guilty; the court (jury for guilt, judge for punishment) later assessed life imprisonment after Perkins pleaded true to enhancement paragraphs. Appeal was timely filed by defense counsel.
- The choking allegation rests almost entirely on Patsy’s testimony that Oscar put her in a chokehold in the bedroom after an argument over an insurance settlement check; she testified she felt pain but also that she could still speak and breathe.
- Medical evidence was limited: treating physician testified the complaints could be consistent with choking but CT scan and exam revealed no definitive neck/throat injury or subcutaneous bruising; forehead hematoma was the only undisputed injury.
- The defense emphasizes (a) credibility issues with the complainant (conflicting statements about attempting to withdraw prosecution and about events), (b) lack of medical proof that breathing or circulation was actually impeded, and (c) entitlement to a lesser-included misdemeanor assault instruction (bodily-injury assault) that the trial court refused.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perkins) | Held |
|---|---|---|---|
| 1. Sufficiency of evidence to convict for choking-type assault (impeding breathing/circulation) | Evidence (complainant testimony and medical opinion) was sufficient for a rational jury to find element of impeded breathing/circulation. | Patsy was the sole witness for choking; her credibility was impeached; medical evidence did not show impediment of breathing/circulation — evidence legally insufficient. | Appeal brief requests reversal and rendition of acquittal; appellate disposition not included in record (appeal pending). |
| 2. Denial of motion for directed verdict / JNOV (sufficiency at close of State’s case) | The evidence at trial met Jackson v. Virginia standard; the court properly denied the directed verdict. | Same sufficiency argument: State failed to prove impeded breathing/circulation beyond reasonable doubt; directed verdict should have been granted. | Appellant asks this Court to sustain and render acquittal; appellate decision not in this brief. |
| 3. Failure to instruct jury on lesser-included offense (misdemeanor assault causing bodily injury) | The greater offense encompasses the lesser; State presumably opposed lesser instruction as unnecessary given choking allegation. | Evidence (forehead hematoma, testimony that she could still speak, ambiguous medical testimony) provided at least a scintilla of evidence supporting only misdemeanor assault; court should have instructed jury. | Appellant contends reversal and new trial required for failure to include lesser instruction; appellate decision not recorded here. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for legal sufficiency review)
- Tibbs v. Florida, 457 U.S. 31 (remedy where appellate court finds evidence insufficient)
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App.) (lesser-included offense framework discussion)
- Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App.) (requirement for some evidence "germane" to lesser-included offense)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App.) (two-step test for lesser-included instruction)
- Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.) (appellate deference to jury credibility determinations)